Chilberg v. Rose, 94-542

• Decision Date: 13 October 1995
• Docket Number: No. 94-542,94-542
• Parties: Frank CHILBERG, Plaintiff and Appellant, v. Valerie Wynn ROSE and Mid-Century Insurance Company, Defendants and Respondents.
• Court: Montana Supreme Court

Page 1377

903 P.2d 1377

273 Mont. 414

Frank CHILBERG, Plaintiff and Appellant, v. Valerie Wynn ROSE and Mid-Century Insurance Company Defendants and Respondents.

No. 94-542.

Supreme Court of Montana.

Submitted on Briefs July 28, 1995.

Decided Oct. 13, 1995.

Thomas M. Keegan, Attorney at Law, Helena, for Appellant.

Lyman H. Bennett, III; Morrow, Sedivy & Bennett, Bozeman, for Respondent.

LEAPHART, Justice.

Frank Chilberg (Chilberg) appeals from an order of the First Judicial District Court, Lewis and Clark County, granting Mid-Century Insurance Company (Mid-Century) summary judgment, concluding that Mid-Century was not liable under uninsured motorist coverages and medical coverages provided in separate insurance policies. We affirm.

The following issue is raised on appeal:

Did the District Court err in granting Mid-Century's motion for summary judgment?

The material facts of the case are undisputed. On January 5, 1992, Chilberg was a passenger in a car driven by Derek Whittenberg, which was struck by a car driven by defendant Valerie Wynn Rose. Chilberg was injured in the collision. Chilberg alleges that Rose failed to stop at a red light before running into the vehicle Whittenberg was driving. Rose was an uninsured motorist.

Whittenberg is the stepson of Jay Dean, the insured owner of the car involved in the accident. Dean purchased an auto insurance policy from Mid-Century covering the car in which Chilberg was riding. The policy provided coverage for medical expenses and for bodily injury caused by uninsured motorists. At the time of the accident, Dean had three cars insured through Mid-Century. Each car was covered under a separate policy and each policy provided identical coverages and policy limits. Each of the three policies had limits of $25,000 per person and $50,000 per incident for uninsured motorist, and $5,000 per person for medical coverage. Dean paid separate premiums for each of the coverages provided in the three policies. Mid-Century paid Chilberg a total of $30,000 under the uninsured motorist and medical coverages provided in the policy insuring the car in which Chilberg was riding.

On January 31, 1994, Chilberg filed suit against Rose and Mid-Century. Chilberg was unable to serve Rose. In his complaint, Chilberg alleged that while Mid-Century paid him for uninsured motorist and medical coverage available under the policy issued on Dean's car involved in the accident, it refused to pay him uninsured motorist and medical coverage available under the policies issued on Dean's other two cars. In its answer, Mid-Century alleged that Chilberg was not an "insured" under the terms of Dean's other two policies. On May 20, 1994, Mid-Century moved for summary judgment. On August 26, 1994, the District Court granted Mid-Century's motion for summary judgment. Chilberg appeals.

Our standard in reviewing a district court's grant of a motion for summary judgment is the same as that utilized by the district court; we are guided by Rule 56, M.R.Civ.P Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214. Thus, we determine whether a genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law. Minnie, 849 P.2d at 214. In this case, there is no genuine issue of material fact, therefore we need only consider whether the District Court was correct in concluding that Mid-Century was entitled to judgment as a matter of law.

For some time, this Court has approved the practice of "stacking" uninsured motorist coverages when the insured has paid separate premiums for the separate uninsured motorist coverages. See Kemp v. Allstate Ins. Co. (1979), 183 Mont. 526, 601 P.2d 20. In Kemp, we allowed stacking of uninsured motorist coverages under two separate policies. One policy was issued in Vermont and covered two cars, one of which was the car in which plaintiff's decedent was an "occupant." The second policy was a New York policy issued to decedent's parents that covered three cars. There was no question in Kemp as to whether decedent was an "insured." Under the Vermont policy, decedent was an "insured" by virtue of "occupying a motor vehicle owned by the named insured." And, according to the New York policy, decedent was an "insured" because decedent was a "relative" of the named insured. As an insured under both policies, she was allowed to stack coverages for each insured vehicle within each policy.

In Sayers v. Safeco Ins. Co. of America (1981), 192 Mont. 336, 628 P.2d 659, one insurance policy covered two vehicles. That policy defined "insured" as the named insured or "any other person while occupying an insured automobile." This Court determined that Sayers was occupying a car owned by Gary Galetti, within the meaning of the insurance policy, when an uninsured motorist struck the car. Galetti's policy covered the car involved in the accident and another car owned by Galetti. Once we determined that Sayers was "occupying" the Galetti car, Sayers qualified as an insured under the policy and was, therefore, entitled to stack uninsured motorist coverage from the two Galetti cars. Accordingly, we held that a passenger, as well as an insured who pay premiums, can stack coverage for multiple cars insured under one policy. Sayers, 628 P.2d at 661.

Mid-Century argues that Sayers is distinguishable because in Sayers Safeco only issued one policy under which both cars were insured. Here, Mid-Century issued three separate policies to Dean and, according to Mid-Century, Chilberg does not qualify as an insured under the two disputed policies because he was not occupying the cars insured under the two disputed policies. We agree. Although this case, like Kemp and Sayers, involves a passenger it presents a different situation from those cases. In both Kemp and Sayers, the plaintiff fit within the definition of "insured" for each policy that was stacked. Once the injured party qualified as an insured, either as a relative or as an occupant, the injured party could stack the coverage for each vehicle within that policy.

Here, however, we have three separate vehicles covered by three separate policies. Each policy covers the named insured or "any other person while occupying your insured car." Mid-Century paid the coverage for the one vehicle Chilberg...